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Reanalysing Institutional and Remedial Constructive Trusts

Liew, YK; (2016) Reanalysing Institutional and Remedial Constructive Trusts. Cambridge Law Journal , 75 (3) pp. 528-549. 10.1017/S0008197316000519. Green open access

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Abstract

It is often said that English law does not impose “remedial” constructive trusts because it is manifestly inappropriate and fundamentally unjustified to impose trusts through the exercise of judicial discretion and with retrospective effect. This paper observes the definitional deficiencies in this understanding, and reanalyses constructive trusts in terms of the rights which they give effect to. This understanding reveals that English law sets its face against the exercise of discretion in relation only to some “remedial” constructive trusts and not others, and that the perceived difficulties with remedial constructive trusts are often exaggerated. It ends by noting some crucial implications of the re-analysis for the future development of the law.

Type: Article
Title: Reanalysing Institutional and Remedial Constructive Trusts
Open access status: An open access version is available from UCL Discovery
DOI: 10.1017/S0008197316000519
Publisher version: http://dx.doi.org/10.1017/S0008197316000519
Language: English
Additional information: © Cambridge Law Journal and Contributors 2016.
Keywords: Institutional constructive trusts, remedial constructive trusts, discretion, primary and secondary rights, precedent, retrospectivity, Australia, Canada
UCL classification: UCL
UCL > Provost and Vice Provost Offices
UCL > Provost and Vice Provost Offices > UCL SLASH
UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws
URI: https://discovery.ucl.ac.uk/id/eprint/1498566
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